Build Maryland Fall 2019 - 6

LEGAL BRIEF

AN ERRONEOUSLY ISSUED BUILDING
PERMIT CAUSES PROTRACTED
LEGAL PROCEEDINGS
by WILLIAM D. SHAUGHNESSY, JR., GORDON FEINBLATT LLC

Suppose you want to build a house. You submit plans to the local jurisdiction, the plans are
reviewed, and you are issued a building permit. You build your house in accordance with the
approved plans and the building permit. After your house is built, neighbors complain that
the house does not meet the applicable front yard setback requirements. No problem, right?
You built in accordance with the building permit so you are fine, right? Wrong. An erroneously
issued permit can be voided and cause immense inconvenience (or worse), as occurred in
In the Matter of the Petition of Angela Taylor, No. 2119 Sept. Term 2017, 2019 WL 2006012
(Md. Ct. Spec. App. May 7, 2019).
Guy Naylor purchased a residential
lot on Roland Avenue in Baltimore City.
He submitted plans and applied for a
building permit to build a 4,000 square
foot house on his 18,226 square foot lot.
The plans depicted a 30 foot front yard
setback from the house to the street to
match the general residential setback for
the zone of 30 feet. The City approved
the building plans and issued a building
permit for construction of the home
with a 30 foot setback. Thereafter, Naylor constructed his house and received
a use and occupancy permit from the
City. Unfortunately for Naylor, a separate section of the zoning code required
a front yard setback "averaging" with
neighboring properties, which yielded a
40 foot front setback.
Naylor's neighbors (including Angela
Taylor, the named plantiff in the case)
were apparently unhappy with the
location of the home and complained to
the City. The City realized it had made
an error in approving a 30 foot setback
instead of a 40 foot setback. Over a year
after the building permit was issued,

6

BUILD MARYLAND

Fall 2019

and after the City had issued a use and
occupancy permit for the completed
home, the City sent Naylor a letter
advising that it had made an "error" in
permit review and as a result the "structure as constructed on the Property is
non-conforming with the Baltimore
City Code." The City instructed Naylor
to apply for a variance to cure the 10
foot setback nonconformity.
Naylor applied for a variance, which
was denied. He then appealed to the
City Board of Municipal and Zoning
Appeals ("BMZA"). The BMZA dismissed the variance appeal on the basis
that it lacked jurisdiction because neither the original building permit nor the
subsequent use and occupancy permit
had been revoked (or appealed).
In response to the BMZA action, the
City revoked the use and occupancy
permit for the property. Naylor appealed
the revocation of the use and occupancy
permit and, in conjunction with the
appeal, requested a 10 foot front yard
setback variance. After a hearing, the
BMZA granted Naylor's request for the

variance. The BMZA found that Naylor
satisfied the requirements for a variance
by proving the two necessary elements:
(a) the "uniqueness" of his property and
(b) he would suffer "practical difficulty
or unnecessary hardship" in complying
with the 40 foot (not 30 foot) front yard
setback requirement. Of significance to
the disposition of the case, the parties
conceded that the elements of uniqueness and hardship needed to be proven
as of the date of issuance of the original
building permit, not at the time the use
and occupancy permit was revoked.
The aggrieved neighbors appealed the
BMZA variance approval to the Circuit
Court for Baltimore City. The circuit
court affirmed the BMZA decision. The
aggrieved neighbors further appealed
to the Court of Special Appeals. The
neighbors argued that the BMZA
erred in granting the setback variance
because Naylor had not sufficiently
demonstrated (a) uniqueness of his
property, nor (b) "practical difficulty
or unnecessary hardship" in complying
with the 40foot setback requirement as
of the date of issuance of the original
building permit.
In reviewing the decision of the
BMZA, the Court of Special Appeals
found that there was sufficient evidence
in the record to support the BMZA's
finding that the property met the
"uniqueness" requirement for granting a
variance. The court found, however, that



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